Opinion
No. COA09-1343
Filed 15 June 2010 This case not for publication
Appeal by defendant from judgment entered 16 June 2009 by Judge W. Allen Cobb, Jr., in Sampson County Superior Court. Heard in the Court of Appeals 7 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Nancy Reed Dunn, for the State. David L. Neal for defendant-appellant.
Sampson County No. 07 CRS 51103.
The trial court properly instructed the jury when its instruction on the identification of defendant as the perpetrator of the crime conveyed the substance of defendant's requested instructions. The trial court did not abuse its discretion when it sentenced defendant from the presumptive range and was not required to make findings regarding mitigating factors. The State offered no evidence beyond the prosecutor's unsworn statements to support its restitution request, and we remand for a new hearing on the amount of restitution.
I. Factual and Procedural Background
At about midnight on 18 March 2007, Jerry Lee Jeffers (Jeffers) arrived at "Cowboy's," a rural "after-hours social spot" with a bar and a pool table. Jeffers saw defendant sitting at the bar. He knew her by the nickname "Smoke." Jeffers got up from his bar stool, and when he returned, he found defendant sitting with her feet propped up on the stool. Jeffers asked defendant to move her feet, and defendant refused. Jeffers then sat on another stool, and defendant left Cowboy's.
After Cowboy's closed early that morning, Jeffers left to get breakfast. Jeffers saw a car parked near the entrance. Although it was still dark, Jeffers could see defendant was in the car because the car's inside dome light was on. Jeffers saw defendant "plain as day" with a handgun in her hand. As defendant approached Jeffers, she said, "Now what's up?," and he heard a "pop, pop" and began to run. Jeffers heard a total of five or six shots and was struck once in the lower left side of his back. The bullet exited his body through the front of his leg.
Jeffers ran across the street, struck a clothesline, and crawled into nearby woods and called 911 on his cell phone. Jeffers told the 911 operator that he did not know the name of the person who shot him. Deputy Jason Faircloth responded to Jeffers' 911 call. Jeffers told him that a woman named "Crystal" shot him. Later, Jeffers told Sergeant Chris Warren that an "unknown female, possibly Crystal" shot him.
Defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. At trial, defendant confirmed that she had an altercation with Jeffers over a bar stool in Cowboy's but denied shooting him. Defendant testified that she left the bar immediately after her argument with Jeffers, that she did not return to the bar that night, and that she did not know Jeffers.
On 16 June 2009, a jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury. At the sentencing hearing, the prosecutor requested restitution and submitted a restitution worksheet for $3,000.00. The State did not offer any evidence supporting the amount of restitution request. The trial court sentenced defendant to 65 to 87 months in prison, and ordered restitution of $3,000.00.
Defendant appeals.
II. Jury Instruction on Identification of Defendant as Perpetrator of the Offense.
In her first argument, defendant contends that the trial court erred in not giving defendant's requested instruction on the identification of defendant as the perpetrator of the crime. We disagree.
Defendant submitted a written request for a special jury instruction on identification of defendant as the perpetrator of the offense, which was based on the language used in this Court's opinion in State v. Carson, 80 N.C. App. 620, 343 S.E.2d 275 (1986):
I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the alleged offenses charged beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant . . . was the perpetrator of the offenses charged before you may return a verdict of guilty.
The main aspects of identification are the observations of the offender by the witness at the time of the offense.
In examining the testimony of the witness as to his or her observation of the perpetrator at the time of the alleged offense, you should consider the capacity of the witness to make such an observation, to his or her senses, the opportunity of the witness to make an observation, and details, such as, the lighting of the scene of the alleged offense at the time of the incident. You are to consider the mental and physical condition of the witness, the length of time of the observation and any other condition or circumstance which may have aided or hindered the witness in making the observation.
However, your consideration must go further. The identification of the defendant by the witness as the perpetrator of the offense must be purely the product of the witness' recollection of the offender and derived only from the observation made at the time of the offense. In making this determination, you should consider the manner in which the witness was confronted by the defendant after the offense and any circumstances and pressures which might have influenced the witness in making an identification and which would cast doubt upon or reinforce the accuracy of the witness' identification of the defendant.
Identification witness is a witness just like any other witness. That is, you should access [sic] the credibility of the identification witness the same way you would with any other witness in determining the adequacy of the witness' observation and the witness' capacity to observe.
The trial court denied the request and gave the jury the following instructions from the North Carolina Pattern Jury Instructions for Criminal Cases:
Now you are the sole judges of the credibility, that is, the believability of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all or any part or none of what a witness has said on the witness stand. In determining whether to believe any witness, you should apply the same tests of truthfulness which you apply in your everyday affairs. These tests may include, among other things, the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which he has testified; the manner and appearance of the witnesses; any interest, bias, or prejudice the witness may have; the apparent understanding and fairness of the witness; whether the testimony is reasonable, and whether the testimony is consistent with the other believable evidence in the case.
You are also the sole judges of the weight to be given to any evidence. By this I mean if you decide that certain evidence is believable, you must then determine the importance of that evidence in light of all other believable evidence in the case.
Ladies and gentlemen, there are two types of evidence from which you may find the truth as to the facts of a case; direct and circumstantial evidence. Direct evidence is the testimony of one who asserts actual knowledge of a fact, such as an eyewitness. Circumstantial evidence is proof of a chain or group of facts and circumstances indicating the guilt or innocence of a defendant. The law makes no distinction between the weight to be given to either direct or circumstantial evidence nor is a greater degree of certainty required of circumstantial evidence than of direct evidence.
You should weigh all of the evidence in the case. After weighing all the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, then you must find the defendant not guilty.
Ladies and gentlemen, I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.
N.C.P.I., Crim. 101.15, 101.20, 104.05 and 104.90.
"When a requested instruction is correct in law and supported by the evidence, the trial court must give the instruction in substance." State v. Williams, 95 N.C. App. 627, 629, 383 S.E.2d 456, 458 (1989) (citing State v. Bradley, 65 N.C. App. 359, 309 S.E.2d 510 (1983)). "It is well settled in this State that the trial judge is not required to charge the jury in the exact language requested by the defendant. A charge which conveys the substance of the requested instructions is sufficient." State v. Smith, 311 N.C. 287, 290, 316 S.E.2d 73, 75 (1984) (citing State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976)) (emphasis in original).
"[W]hen challenging a jury instruction, [defendant must] show that the jury was misled or misinformed by the charge as given, . . . or that a different result would have been reached had the requested instruction been given." Carson, 80 N.C. App. at 625, 343 S.E.2d at 278 (citations omitted). "Our appellate courts have been loath to find reversible error based on failure to give a requested jury instruction when in the court's opinion the `in substance' requirement has been fulfilled." Id., 343 S.E.2d at 279 (citations omitted).
In the instant case, after carefully examining defendant's proposed instruction and the instructions given by the trial court, we hold that the instructions as given convey the substance of defendant's requested instruction. The requested instruction informed the jury of the State's burden of proving beyond a reasonable doubt defendant's identity as the perpetrator of the offense, and how the jury should evaluate the credibility and weight to be given to the witnesses' identity testimony. The trial court's instructions provide the same direction to the jury, including specifically instructing the jury that the State was required to prove, beyond a reasonable doubt, defendant's identity as the perpetrator, and providing the jury with proper guidance regarding the weight and credibility of testimony. We hold that the trial court properly instructed the jury.
This argument is without merit.
III. Sentencing
In her second argument, defendant contends that the trial court abused its discretion by sentencing her from the presumptive range when the evidence supported the statutory mitigating factor that she had been honorably discharged from the armed services. We disagree.
"The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court." N.C. Gen. Stat. § 15A-1340.16(a)(2009). "The court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences[.]" N.C. Gen. Stat. § 15A-1340.16(c)(2009). "[T]he offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists." N.C. Gen. Stat. § 15A-1340.16(a) (2009).
As defendant acknowledges in her brief, we have previously rejected her argument in State v. Ramirez, 156 N.C. App. 249, 258-59, 576 S.E.2d 714, 721, disc. review denied, 357 N.C. 255, 583 S.E.2d 286, cert. denied, 540 U.S. 991, 157 L. Ed. 2d 388 (2003)("the court may, in its discretion, sentence defendant within the presumptive range without making findings regarding proposed mitigating factors"). We conclude that the trial court acted within its discretion when it sentenced defendant from the presumptive range, and the trial court was not required to make findings regarding mitigating factors.
This argument is without merit.
IV. Restitution
In her third argument, defendant contends that the trial court erred by ordering her to pay restitution without evidence to support the amount of restitution ordered. We agree.
"`[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.'" State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (quoting State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995)). The prosecutor's unsworn statements "[do] not constitute evidence and cannot support the amount of restitution recommended." State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992) (citation omitted). "[E]ven where a defendant does not `specifically object to the trial court's entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. § 15A-1446(d)(18).'" State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007) (quoting Shelton, 167 N.C. App. at 233, 605 S.E.2d at 233).
The State offered no evidence beyond the prosecutor's unsworn statements to support its restitution request. Although Jeffers testified during trial that he missed "two weeks to a month" of work because of his injuries, there is no evidence in the record that establishes lost income or supports the trial court's restitution order of $3,000.00. See State v. Davis, 167 N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005). We reverse that portion of the judgment and remand for a new hearing on the amount of restitution.
Defendant has failed to argue the remaining assignments of error in her brief, and they are deemed abandoned pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure.
NO ERROR IN PART; REVERSED AND REMANDED IN PART.
Judges HUNTER, ROBERT C. and BRYANT concurs.
Reported per Rule 30(e).